28 U.S. Code § 751 - Clerks

(a)Each district court may appoint a clerk who shall be subject to removal by the court.

(b)The clerk may appoint, with the approval of the court, necessary deputies, clerical assistants and employees in such number as may be approved by the Director of the Administrative Office of the United States Courts. Such deputies, clerical assistants and employees shall be subject to removal by the clerk with the approval of the court.

(c)The clerk of each district court shall reside in the district for which he is appointed, except that the clerk of the district court for the District of Columbia and the Southern District of New York may reside within twenty miles thereof. The district court may designate places within the district for the offices of the clerk and his deputies, and their official stations.

(d)A clerk of a district court or his deputy or assistant shall not receive any compensation or emoluments through any office or position to which he is appointed by the court, other than that received as such clerk, deputy or assistant, whether from the United States or from private litigants.

This subsection shall not apply to clerks or deputy clerks appointed as United States magistrate judges pursuant to section
631 of this title.

(e)The clerk of each district court shall pay into the Treasury all fees, costs and other moneys collected by him, except naturalization fees listed in section
742 of Title
8 and uncollected fees not required by Act of Congress to be prepaid.

He shall make returns thereof to the Director of the Administrative Office of the United States Courts under regulations prescribed by him.

(f)When the Court of International Trade is sitting in a judicial district, other than the Southern District or Eastern District of New York, the clerk of the district court of such judicial district or an authorized deputy clerk, upon the request of the chief judge of the Court of International Trade and with the approval of such district court, shall act in the district as clerk of the Court of International Trade, as prescribed by the rules and orders of the Court of International Trade for all purposes relating to the civil action then pending before such court.

This section consolidates provisions of section 11–401 of the District of Columbia Code, 1940 ed., sections
644 and
863 of title
48, U.S.C., 1940 ed., Territories and Insular Possessions, and title 28, U.S.C., 1940 ed., sections
6,
7,
8,
524,
557,
567,
568, and
569 relating to district court clerks. Other provisions of such sections
8 and
524 are incorporated in sections
505 [now 545], 541 [see 561], and 954 of this title and other provisions of such section 11–401 of the District of Columbia Code have been retained in such Code.

Words “with the approval of the court” were substituted for “Attorney General.” The power to approve appointment of court officers is more properly a judicial one. (See section
711 of this title.)

The provision in section
6 of title
28, U.S.C., 1940 ed., that the clerk be appointed by the district judge or senior judge where there was more than one member of the court was changed and the power vested in the court.

The provisions of section
644 of title
48, U.S.C., 1940 ed., Territories and Insular Possessions, relating to compensation of clerks and deputy clerks were omitted as covered by section
604 of this title. Other provisions of said section
644 are incorporated in section
753 of this title.

Provision for similar officers in Alaska, Canal Zone, and the Virgin Islands is made by sections
106,
1349, and
1405y, respectively, of title
48, U.S.C., 1940 ed. A part of section 863 of said title 48, was retained in title 48. For remainder of such section, see Distribution Table.

Words in sections
6 and
7 of title
28, U.S.C., 1940 ed., “Except as otherwise provided for by law,” were omitted as obsolete and superfluous.

References in section
7 of title
28, U.S.C., 1940 ed., that the clerk recommend appointment of deputies and clerical assistants were omitted as unnecessary.

The provision that each clerk shall be subject to removal by the court is new. No tenure was provided for by title 28, U.S.C., 1940 ed., but said title contained provisions that other clerks should hold office during the pleasure of the courts which appointed them, and that deputies should hold office during the pleasure of the clerks. The Supreme Court held, in 1839, that a judge of a district court could remove the clerk thereof at pleasure in absence of any law fixing the clerk’s tenure. In re Hennen, 38 U.S. 230, 13 Pet. 230, 10 L.Ed. 138. (See also, Meyers v. U.S., 47 S.Ct. 21, 272 U.S. 52, 71 L.Ed. 160.)

The provisions in section
524 of title
28, U.S.C., 1940 ed., that the clerk shall give his personal attention to his official duties, and declaring his office vacant upon removal from his district or neglect of duty, were omitted as covered by the removal provision of this section.

The provision permitting the clerk of the district court for the District of Columbia to reside within twenty miles of the District of Columbia was added because of the relatively small and congested area of the District, as a result of which few federal officers are appointed from the District or reside therein.

The provision in subsection (b) of this section authorizing judges to designate the places for maintaining offices by the clerks was added because of many special provisions, in sections
141–196 of title
28, U.S.C., 1940 ed., for the maintenance of offices by the clerks of the district courts at various particular places. These provisions have been omitted, on revision, as covered by the more general provisions of this section. For residence requirements of United States attorneys and marshals, see sections
505 [now 545] and 541 [see 561] of this title.

A provision that a breach of section
569 of title
28, U.S.C., 1940 ed., should be deemed a vacation of the offender’s appointment, was omitted as covered by the removal provision of this section.

The provision of section
569 of title
28, U.S.C., 1940 ed., limiting the compensation of a clerk who is appointed United States commissioner, to $3,000 a year for both offices was omitted as obsolete. The proper adjustment of the compensation of such clerks is an administrative matter more appropriately regulated by the Director of the Administrative Office under the Supervision of the Judicial Conference of the United States. (See section
604 of this title.)

Reference in sections
557,
567 and
568 of title
28, U.S.C., 1940 ed., to accounting by district court clerks in Alaska, were omitted as covered by sections
106 and
107 of title
48, U.S.C., 1940 ed., Territories and Insular Possessions, relating to duties of those clerks.

References in sections
557 and
567 of title
28, U.S.C., 1940 ed., to the clerk of the district court of the United States for the District of Columbia, were omitted as covered by words “The clerk of each district court of the United States.”

As revised, this section is in harmony with the provisions in chapters 45 and 47 of this title relating to accounting by the clerk of the Supreme Court and clerks of the courts of appeals.

Provisions as to time and method of accounting and settlement of accounts were omitted as covered by chapter
41 of this title giving the Director of the Administrative Office of the United States Courts supervision over such accounts, and of chapter 2, Audit and Settlement of Accounts, of title 31, U.S.C., 1940 ed., Money and Finance.

Provisions as to particular fees and moneys to be accounted for were omitted as covered by words “all fees, costs and other moneys.” Included in such provisions was a provision as to naturalization fees, but a later act, now appearing in section
742 of title
8, U.S.C., 1940 ed., Aliens and Nationality, provided a different method of accounting and an exception expressly referring to such section was inserted in this section.

Changes were made in phraseology.

References in Text

Section
742 of Title
8, referred to in subsec. (e), was repealed by act June 27, 1952, ch. 477, title IV, § 403(a)(42),66 Stat. 280. See section
1455 of Title
8, Aliens and Nationality.

“United States magistrate judges” substituted for “United States magistrates” in subsec. (d) pursuant to section 321 ofPub. L. 101–650, set out as a note under section
631 of this title. Previously, “United States magistrates” substituted for “United States commissioners” pursuant to Pub. L. 90–578. See chapter 43 (§ 631 et seq.) of this title.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–417effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) ofPub. L. 96–417, set out as a note under section
251 of this title.

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